Note:
Decisions of a three-justice panel are not to be considered as precedent before
any tribunal.

ENTRY
ORDER

SUPREME
COURT DOCKET NO. 2006-034

JULY
TERM, 2006

In re Daren Austin } APPEALED
FROM:

}

} Washington
Superior Court

}

} DOCKET
NO. 350-6-05 Wncv

Trial Judge:
Helen M. Toor

In
the above-entitled cause, the Clerk will enter:

Petitioner
Daren Austin appeals from the trial court=s
order granting summary judgment to the State on his petition for
post-conviction relief. He argues that the trial court erred because: (1) it
improperly evaluated whether he received ineffective assistance of counsel at
trial; and (2) there were material facts in dispute. We affirm.

Petitioner was
convicted of domestic assault after a jury trial. He filed a petition for
post-conviction relief, asserting that his trial attorney was ineffective
because he failed to pursue a necessity defense. Specifically, petitioner
argued that his behavior was justified because he was trying to prevent the
victim from driving while intoxicated. The State moved for summary judgment,
and the court granted its request. In reaching its decision, the court
recounted the following evidence from petitioner=s
trial. On the evening of the assault, petitioner and his girlfriend, Marissa
Cooney-Moore, were drinking at various bars. At their last stop, petitioner
left the bar on foot without Ms. Cooney-Moore. She followed him in her car.
She was intoxicated and acknowledged that she should not have been driving.
Ms. Cooney-Moore located petitioner, and he got into the car. They talked
about why he had left the bar without her. Petitioner indicated that he was
jealous that Ms. Cooney-Moore was talking to the bar owner. Ms. Cooney-Moore
was angry and said that she was leaving. Petitioner grabbed the keys from the
ignition and exited the car. Ms. Cooney-Moore testified that petitioner took
the keys because he felt that they needed to resolve their dispute right then;
he did not express any concern that she was too drunk to drive.

Ms.
Cooney-Moore got out of the car and tried to get her keys back. Petitioner
would not give them to her so she began walking. Petitioner then grabbed her,
restrained her, and they struggled. Ms. Cooney-Moore fell to the ground.
Petitioner said that he was going to hurt her. He reached for her head area,
and Ms. Cooney-Moore bit his finger. They both got up, and she began to walk
away. Petitioner then grabbed her, picked her up, and dropped her to the
ground, where she hit her head. A woman who lived nearby testified that she
awoke to a woman screaming, Aplease
don=t hurt me, don=t hurt me,@ and a man screaming, AI=m going to hurt you@ over and over again. She roused her husband,
who also heard a woman scream Ahelp
me.@ He told his wife
to call 9-1-1. He then went outside and found Ms. Cooney-Moore with a Agood-sized egg on her head.@ Petitioner admitted to
police that he said, AI=m going to hurt you.@ He claimed that Ms.
Cooney-Moore attacked him after she got out of the car and bit his finger. He
could not explain the bump on her head. He finally admitted pushing her once.
He did not indicate that he was concerned Ms. Cooney-Moore could not drive
safely in her intoxicated state.

With this
evidence in mind, the court evaluated petitioner=s
claim that he had suffered prejudice due to his trial counsel=s allegedly ineffective
representation. Petitioner argued that his trial counsel should have raised a
necessity defense and requested a jury instruction on this defense. According
to petitioner, his attorney should have had him testify that he intended to
prevent Ms. Cooney-Moore from operating her car because she was drunk and he
had acted to prevent injury or death when he struggled with her over the car
keys. The trial court rejected this argument. It found that, even assuming
that counsel=s
performance was deficient, petitioner could not establish prejudice, that is,
there was no reasonable probability that but for counsel=s errors, the proceedings would have turned
out differently. The court explained that, even if the jury believed
petitioner=s proffered
testimony about trying to protect the victim, the necessity defense would have
applied only to the point where petitioner took the keys from Ms.
Cooney-Moore. The evidence at trial, however, was that on two separate
occasions after he already had the keys, petitioner restrained Ms. Cooney-Moore
from leaving on foot. Thus, there was no evidence from which a jury could
reasonably find that there was any Anecessity@ for his actions once
petitioner had the keys.

Moreover, the
court explained, petitioner=s
story was entirely undercut by the independent evidence from the neighbors as
well as petitioner=s
own admission that he said AI=m going to hurt you.@ The court also found
petitioner=s story
weakened by evidence that: (1) he told Ms. Cooney-Moore that she needed to stay
so they could resolve their dispute; (2) he never told her that he was
concerned about her driving given how much she=d
had to drink; and (3) he never mentioned to police at the time that he was
trying to prevent her from driving because she was drunk. Given the weight of
the evidence against petitioner, the court explained, he failed to establish a
reasonable probability that a different approach by counsel would have led to
acquittal. The court therefore granted summary judgment to the State.
Petitioner appealed.

On review of
the trial court=s
summary judgment decision, we apply the same standard as the trial court. ASummary judgment is
appropriate when there are no genuine issues of material fact and, viewing the
evidence in a light most favorable to the nonmoving party, the moving party is
entitled to judgment as a matter of law.@In re Carter, 2004 VT 21, &
6 (citation omitted).

Petitioner
first suggests that the trial court applied the wrong standard to evaluate
whether he suffered prejudice from trial counsel=s
alleged error. According to petitioner, the trial court placed an Aimpossible burden@ on him by requiring him to
show that but for counsel=s
error, the outcome of the proceedings would have been different.

This claim of
error is without merit. It is well-established that to sustain his claim of
ineffective assistance of counsel, petitioner needed to show by a preponderance
of the evidence that: A(1)
his counsel=s
performance fell below an objective standard of performance informed by
prevailing professional norms; and (2) there was a reasonable probability that,
but for counsel=s
unprofessional errors, the proceedings would have resulted in a different
outcome.@In re
Koveos, 2005 VT 28, &
6 (mem.) (quotation omitted). The record plainly demonstrates that the trial
court employed the proper legal standard in evaluating petitioner=s claim. As the trial
court explained, even if a necessity defense had been presented to the jury, it
would not have justified petitioner=s
repeated assault of the victim after he obtained her car keys. See State v.
Shotton, 142 Vt. 558, 560-61 (1983) (elements of the necessity defense are:
(1) a situation of emergency arising without fault on the part of actor
concerned; (2) the emergency is Aso
imminent and compelling as to raise a reasonable expectation of harm, either
directly to the actor or upon those he was protecting@; (3) emergency must present no reasonable
opportunity to avoid the injury without doing the criminal act; and (4) the
injury impending from the emergency must be of sufficient seriousness to
outmeasure the criminal wrong). It is illogical to argue that petitioner
needed to pick up the victim and drop her to the ground to prevent her from
driving while intoxicated. The court properly concluded that petitioner was
not prejudiced by counsel=s
failure to pursue a necessity defense.

Petitioner
next argues that summary judgment was inappropriate because there were material
facts in dispute. He points to an affidavit that he submitted, which outlined
testimony that he would have offered at trial to support his necessity
defense. Petitioner also maintains that the trial court improperly assessed
his credibility and the credibility of other witnesses in reaching its summary
judgment decision. These arguments are without merit. As explained above,
even if a jury believed petitioner=s
proffered testimony about the evening=s
events, it would not have provided a defense to his additional assaults on the
victim. Summary judgment was appropriately granted to the State.